Support

A cookie is a piece of data stored by your browser or device that helps websites like this one recognize return visitors. We use cookies to give you the best experience on BNA.com. Some cookies are also necessary for the technical operation of our website. If you continue browsing, you agree to this site’s use of cookies.

Marketing Services

Bloomberg Next marketing services allow clients to elevate their brands and extend their reach through our established and trusted expertise, enhanced with engaging event production, appealing design, and compelling messaging.

Nov. 21 — Members of the National Labor Relations Board will be able to decide legal disputes
involving President-elect Donald J. Trump’s businesses even if they owe their seats
on the board to the new president, labor lawyers told Bloomberg BNA.

There is no rule against presidential appointees voting on representation cases or
unfair labor practice proceedings that arise at businesses of the president, though
the issue has apparently not come up before.

Newly appointed members will have “fairly wide latitude” in hearing Trump cases, law
professor Paul M. Secunda told Bloomberg BNA.

Secunda said he doesn’t expect the president’s appointees to recuse themselves from
such controversies and doesn’t believe they need to.

New President Can Fill Board Vacancies

The five-seat board currently has only three members—Chairman Mark Gaston Pearce (D)
and Members Philip A. Miscimarra (R) and Lauren McFerran (D).

Trump can move early next year to nominate two Republicans to fill the vacant seats
on the board and may designate a Republican as chairman.

By the end of his four-year term, Trump likely will have the opportunity to appoint
or reappoint all of the board members. Miscimarra’s term ends in December 2017, Pearce’s
in 2018 and McFerran’s in 2019.

Trump Cases Likely to Be on Docket

It’s likely that board members will encounter union election petitions or unfair labor
practice charges against Trump organizations in the next few years.

Trump casino and resort properties have been targeted for union organizing and a Trump
Ruffin Commercial LLC hotel property—the Trump International Hotel Las Vegas—is named
in nine unfair labor practice cases now under investigation in the board’s Phoenix
office. Those cases, all filed by a single union, stemmed from a lengthy fight over
organizing hotel employees. The NLRB certified that employees voted 238-209 for union
representation, but the hotel owned by Trump and businessman Phillip Ruffin argued
the election was tainted by union misconduct.

A tenth unfair labor practice charge pending in the New York regional office may have
implications for Trump businesses around the country.

In September, a California group called the Committee to Preserve the Religious Right
to Organize filed an unfair labor practice charge alleging that the Trump Organization
interfered with employee rights under the National Labor Relations Act by requiring
employees to sign broadly worded secrecy and nondisparagement agreements.

The California group Nov. 21 filed an
amended version of the charge that names dozens of Trump business entities as responsible employers
along with the Trump Organization.

The NLRB Nov. 3 ordered Trump Ruffin to recognize and bargain with a labor union as
representative of employees at the Las Vegas hotel (364 N.L.R.B. No. 143, 207 LRRM 1859 (2016)). The company immediately appealed the ruling to the U.S. Court of Appeals
for the District of Columbia Circuit (No. 16-1386).

Law Professor Sees No Recusal Required

There doesn’t appear to be any regulation or clear guidance on the NLRB’s handling
of cases involving businesses related to a sitting president. Secunda, a labor law
professor at the Marquette University Law School, said the key factor in gauging the
duties of board members is that the NLRB operates under the “adjudicative model” under
the Administrative Procedure Act.

The fact-finders in NLRB proceedings are generally the agency’s administrative law
judges, not the board members, Secunda said. The members of the board provide more
of a labor law policy-making function for the agency, he said.

ALJs are not presidential appointees, and the executive branch of government generally
has no direct involvement with them or their fact-finding duties, Secunda said.

If members of the executive branch avoid contact with administrative law judges handling
Trump cases at the NLRB, there is no need for board members to recuse themselves from
those cases, he said.

Board Can Proceed to Decide Trump Cases

Daniel B. Pasternak, a partner who represents employers at Squire Patton Boggs in
Phoenix, offered a similar view.

Trump’s business network creates a risk of “potential entanglements all over the place,”
he told Bloomberg BNA.

However, a board member’s mere appointment by a president wouldn’t require the person
to be recused from an NLRB proceeding, Pasternak said.

If any individual board member chooses not to hear a Trump business case because of
the presidential appointment or some other connection to the president, it will not
likely prevent the board from mustering a quorum to hear the case, he said.

The board generally requires a quorum of three members for action in an unfair labor
practice case or representation case, but where a duly appointed board member is disqualified
or recused from participating in a particular case, the board can proceed with two
members to resolve the case and issue a decision.

To contact the reporter on this story: Lawrence E. Dubé in Washington at
ldube@bna.com

All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to books@bna.com.

Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)

Notify me when updates are available (No standing order will be created).

This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to research@bna.com.

Put me on standing order

Notify me when new releases are available (no standing order will be created)